Wednesday, June 26, 2013

Everyone loves a live, or talking, filibuster. They make for terrific drama! No question about it -- hey, say what you will about Frank Capra, but he certainly knew from compelling drama. So when there is one -- such as yesterday's marathon filibuster of abortion legislation by Texas State Senator Wendy Davis -- everyone wants more, and gets all upset that in the US Senate most filibusters are "silent" and not dramatic at all.

First, a bit of fun. Me, responding to why Democrats didn't demand a talking filibuster against the ACA in 2009:

In the old days, Senators engaged in a filibuster would read recipes or otherwise stray off topic. No need for that now! Not only do Senators have large staffs who could produce content, but there's a whole big internet available. If I were advising the GOP in that situation, I'd tell them to let conservative bloggers know that they can have their big chance for immortality: post something good, and a Republican Senator will read it on the floor of the Senate. Doesn't even have to be about health care! Excellent way to rev up the conservative blogosphere, no? Meanwhile, by forcing Republicans to perform a "real" filibuster, Democrats would transform a 24 hour network that millions of Americans get in their homes into a 24 hour Republican propaganda outlet.

I'd say that's a pretty good prediction for the Rand Paul and Wendy Davis filibusters, no?

Indeed, Paul did read from blog posts; Davis did solicit stuff to read. No recipes required. Well, none allowed, in the Texas example, but no shortage of germane material.

The specific question about Senate reform that this is all about is whether minority party Senators would be discouraged from obstruction if their filibusters had to be "live." Under the Merkley/Udall reform, remember, a talking filibuster staged by a small or large group of minority party Senators would still be able to continue indefinitely, but only as long as Senators were willing to come to the floor and talk.

First, I've argued that there would be plenty of stuff for them to say. I hope that part of it can be treated as settled.

Second, if anything I underestimated the personal incentives for participating in one of these things. By midnight last night, liberals across the nation had practically nominated Wendy Davis for governor of Texas. Granted, that's not quite as useful as actually getting a nomination from Texas Democrats, but it's not nothing. Similarly, everyone seems to agree that Paul did himself quite a bit of good from his filibuster.

Third, another thing seems to kick in on these -- the underdog bias of the Capra-loving press. Granted, both of these talking filibusters were about topics in which the minority position was probably shared by many reporters, but I'm fairly confident that the underdog bias would kick in no matter what the topic.

Fourth, that's all about the "neutral" press. Within the partisan press, it's not only certain that the coverage would be favorable, but highly likely that it would make a great story.

Fifth, the nature of these things seems to be that once it kicks in, the minority party (or, in the Paul case, those with the minority opinion) really starts to mobilize in response. The minority, after all, has action on its side; its their Senators who are speaking.

I just don't see it being a problem to find enough minority party Senators to speak. Sure, they have other demands on their time, but I suspect a handful would be eager to take the bulk of the time, and others would be willing to pitch in. In particular, if we're talking about trying to defeat a filibuster that way, we're talking about a bill or nomination which could not get cloture -- meaning that the minority would have more than 40 Senators to choose from.

Moreover: if Merkley/Udall was adopted by Democrats, I continue to believe that there would be strong incentives for the minority party to immediately prove that they could sustain a talking filibuster indefinitely, regardless of the underlying topic. They might wait a bit to choose something reasonably appealing, but maybe not; the topic of the filibuster, regardless of the underlying measure, would be the arrogance and the unfair and rule-breaking behavior of the Democratic majority.

The bottom line here is that as much as these extended talking filibusters are -- and I agree they are -- they aren't a very good way of deciding things in a legislative chamber. Talking filibusters are fine as one-off publicity-attracting stunts that last a few hours but otherwise have no effects; I'm all for the Rand Paul type of filibuster. But as a real decision mechanism, it's just a lousy way of doing things. It's exceptionally difficult to calibrate the rules in order to get the desired degree of difficulty to keep one going (at least if you want something other than either easy or impossible to sustain it indefinitely). And, at the end of the day, it really makes no sense at all to use physical feats of strength and endurance as some sort of trump card. The right way to make decisions is, well, by voting. Maybe not necessarily by simple majority vote or party-determined party vote, but by vote, one way or another.

I think the short answer there is, they're not necessary. If they were, some senators would rise to the challenge, and given the right issues and stakes, the party caucuses would also rise to the challenge.

Rand Paul's filibuster could have easily gone very badly for him. Some tried to argue that he was grandstanding or making ridiculous claims. If that had become the dominant narrative, it would have been a massive failure for Paul. Also, his party could have joined McCain in ridiculing him for being to the left of Obama on the issue. Instead of becoming a frontrunner for the GOP nomination, he could have become known as just another principled but eccentric gadfly like his father.

Little or no opportunity. Dems basically go for cloture when they can get it, and don't bring something to the floor when they can't. That only leaves situations in which nothing is at stake in the extended speech, which doesn't make it impossible to get press attention (as Paul and Bernie Sanders did), but it takes most of the drama out.

(And even then, mostly they wait to move to a bill until they can get a UC agreement which makes an extended speech impossible).

Couves: I think the risks to Paul were tiny. He was certain to get people who agreed with him on board, and given that he wasn't actually trying to block anything (and indeed given how limited his "demand" was) there wasn't really much reason to fight back against him. He did take some risks by yielding for questions -- he could have made a fool of himself answering them -- but that's about it.

My idea for filibuster reform is to impose a hard limit on how many times it can be used per Congress: say, no more than 45 times. Repeat votes on the exact same legislation/nomination would not count against the total. (You would have to write the rule carefully to prevent the majority from changing a single word in an bill to create a "new" vote.) T

The minority could still block things it deemed important, but it could not block *everything*.

Permitted filibusters proportional to the number of bills the majority proposes are allocated to each member.

Of course this means that any time a senator has a "fractional" number of filibusters. Multiple senators must combine their allocations to produce a complete filibuster. Alternatively, every proposed bill gives all senators an allocation of time they can spend on blocking the bills/nominations they hate most (not blocking all bills). This allocation could even be proportional to the length of the bill (Algorithmic description length FTW!)

This would mean the minority gets to block the stuff it hates most, but not block everything. It also means the priorities and decisions of individual senators would be very important, even if they were "ideally polarized" and had the same Yea or Nay vote on every piece of legislation.

Or you could just do that Superbill thing, and it would be much easier to understand.

It would be easy to write it for appointments, writing it for legislation would be hard. What you would want is to have that a "substantially" changed bill would constitute a new piece of legislation and therefore a new filibuster. Who determines what is a "substantial" change? Obviously, changing a word here or there would not count. Would deleting a handful of sections from a 200 page bill be a "substantial" change? The obvious person to make these determinations is the parliamentarian, but it would really politicize that job. I still think it is an idea worth pursuing.